Book review: ‘Rebels at the Bar,’ about the first female lawyers, by Jill Norgren

When Clara Foltz began studying to become a lawyer in the late 1860s, she was trying to feed her five children. Foltz’s husband had run off, and she’d turned in succession to teaching, sewing and taking in boarders, but none of it brought in much income. Hoping for better, she studied law with the help of her father, who was an attorney in San Jose. Foltz needed his aid because the top lawyer in town refused to take her on, calling her ambition a “foolish pursuit” that would bring “ridicule if not contempt.”

California in those days had no rules about what aspiring lawyers had to study or for how long — the state merely required residency for six months. Plus male anatomy. Lacking that, Foltz had to beg. “I coaxed, I entreated,” she said of her lobbying of the California legislature. “I almost went down on my knees before them asking for the pitiful privilege of an equal chance to earn an honest living in a noble profession.”

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A bill to admit women to the state bar squeaked through the legislature in 1878, by a vote of 37 to 35. As Jill Norgren tells it in “Rebels at the Bar,” her conscientious history of the country’s first female lawyers, Foltz then “virtually flung herself at the governor, called out the number of the bill, and held her breath until he signed it into law.” California joined only Wisconsin and the District of Columbia in allowing qualified women to practice law.

In one sense, Foltz and her fellow pioneers were asking to take the essentially conservative step of joining a middlebrow profession that primarily offered the prospect of financial gain. But the simple fact of their sex meant, of course, that they could not become lawyers without provoking broader change. It’s a lesson that also applies to the drive today to legalize same-sex marriage. Gay couples who want to get married are claiming the conventional mantle of the institution — they want the same rights as straight couples — while at the same time, of course, remaking marriage in their own image. Female lawyers once did the same. Sometimes, it takes a social revolution to change the box to be checked on a form from “male” to “female” (or vice versa).

Foltz, who is also the subject of an excellent biography by Stanford law professor Barbara Babcock, went on to petition for curtailing husbands’ power over property acquired during marriage and for granting women the right to vote. She also argued for the first parole board, created in California in 1893, and for a constitutional right to counsel for criminal defendants — “an entirely new and original solution,” as Norgren writes, which the Supreme Court adopted many decades later in Gideon v. Wainwright (which turned 50 years old this spring).

Foltz is one of eight barrier-breaking women Norgren profiles. The collection allows her to showcase the women’s variety; they followed no common script in terms of upbringing or marriage. While Foltz had a deadbeat husband and supportive parents, Belva Lockwood’s father refused her request to go back to school at 18, after she spent four years as a rural teacher. It was her second husband who stood by her while she waged a long struggle for a legal education, culminating in a sharp letter to President Ulysses S. Grant, the nominal president of her university, demanding the diploma she was denied after completing her courses. Later, as a widow, Lockwood fought another years-long battle, this time with Congress, to become the first woman admitted to the U.S. Supreme Court bar. (She was also the first woman to ride a bicycle around the capital, a bit of daring that prompted President Grover Cleveland to instruct the wives of his Cabinet officers not to follow her example.)

Once Lockwood won her battles for recognition as a lawyer, she “felt free to link her support for equality of professional opportunity and woman suffrage,” Norgren writes. “If women are allowed to be physicians, clergymen, and last, but not least, lawyers . . . why should they not be allowed to vote?” Lockwood asked.

It was a good question. When the 14th and 15th Amendments passed after the Civil War, forbidding states to abridge “the privileges and immunities of citizens of the United States” and to deny the vote to black men, suffragists were crushed because women had been left out. As Norgren points out, the early female lawyers argued that the 14th Amendment implicitly granted women the full privileges of citizenship.

Myra Bradwell tried this idea on the U.S. Supreme Court in 1873, six years before Lockwood’s victory in Congress. Locked out of the Illinois bar by the state courts, Bradwell appealed to the Supreme Court, where her lawyer — a man, of course — urged the justices to find that denying membership in the state bar on the basis of sex violated the privileges of citizenship guaranteed by the 14th Amendment. Bradwell lost, 8 to 1. In an infamous concurring opinion, Justice Joseph P. Bradley wrote that women did not have the freedom to work that men did, because “the natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”

Bradley’s words drew laughs when he read them aloud in the courtroom. But the prejudice he embedded in the court’s precedents held sway beyond the passage of the 19th Amendment, which gave women the right to vote in 1920. It was not until the 1970s that the Supreme Court struck down state laws that treated men and women differently for no good reason.

The lawyer who brought those crucial challenges was Ruth Bader Ginsburg. When she became a justice of the Supreme Court, she hung a photograph and a political cartoon of Belva Lockwood outside her chambers. The women who went first — whose stories Norgren so capably tells — matter deeply to the ones who came after.

Emily Bazelon is a senior writer at Slate and the author of “Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy.”

REBELS at the Bar

The Fascinating, Forgotten Stories
of America’s First Women Lawyers

By Jill Norgren.

New York Univ. 268 pp. $29.95

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